In my continuing efforts to figure out the Napster battles I turned to my young friend the “e-Dude.” E-Dude (My nickname for those who actually know a “html” from a “MP3”) works for the Internet edition of the Tribune. He exploded with e-rage at my very mention of the Recording Industry Association of America, the industry that has been trying to shut down Napster. “What the industry should do is get out there ahead of this new technology and find ways to make it work for them,” he explained. “Instead, they’re trying to fight it and eventually they’re going to lose, just like the movie industry lost the fight to stop VCRs.”
Is Napster the VCR of the future? The parallels are striking.
In August, U.S. District Court Judge Marilyn Hall Patel in San Francisco issued a preliminary injunction to stop Napster from aiding the exchange of music over the Internet. On Monday three federal appeals judges heard arguments on whether to reinstate the injunction pending trial. A decision may be months away.
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The Napster case has politicized and mobilized more rock ‘n’ rollers and rappers in recent months than just about any issue since the Vietnam War.
On one side you have forward thinkers like Chuck D of the rap group Public Enemy. In revolutionary terms, they praise the opportunity Napster and other file-sharing sites offer to bypass the industry’s monopoly on deciding what music the rest of us get to hear.
On the other side you have e-conservatives like heavy-metal rockers Metallica, who testified against Napster during Senate Judiciary Committee hearings in July. “Napster hijacked our music without asking,” Metallica’s Lars Ulrich told the committee.
Whichever way this battle turns out, it provides a crucial test of how, in the age of the Internet, copyright law and intellectual property are going to be defined.
Just ask e-Dude. “Those industry guys are nuts,” he explained in language so non-technical that even I could understand.
“Why?” I asked. “Because they have the gall to stop Napster users from stealing from them?”
“It is not stealing,” e-Dude insisted. “It is sharing.”
“Right,” I agreed. “By the way, I am going to walk away with your laptop now. OK? I am not stealing. I am only sharing.”
As he clutched his laptop to his chest I explained that record companies feel the same way about their music. They will gladly sell you a CD. But you cannot try to copy it and sell it to somebody else without permission or you could wind up in deep you-know-what.
“But, ah,” young e-Dude adds. “Napster does not copy songs. It just provides a search engine that enables you to find songs on someone’s system somewhere and download them. You do have the right to copy a song and share it with your friends.”
Right you are, e-Dude. The right to share through “non-commercial copying” has been established by several important cases over the years, most notably in the Sony vs. Universal Studios case in the early 1980s. The 9th Circuit ruled Sony was not guilty of contributing to infringement by selling its machine to customers who used them to copy movies. Since then, industry folks point out, movie ticket sales and production actually have grown, once the industry adapted to the new technology.
While the Napster argument has raged on in recent months, overall CD sales have actually gone up. Still, CD sales reportedly have begun to dip in stores near college campuses, which happen to be hotbeds of Napster users with easy access to high-speed lines. As the technology improves, the potential is limitless for Internet sharing of movies, records and other media.
During Senate hearings, Orrin Hatch (R-Utah), committee chairman, who coincidentally has recorded a few easy-listening records of his own, sounded like e-Dude as he urged both sides to work out their differences. He suggested they try to reach some sort of “fair and reasonable agreement” to license music through services like Napster.
Napster is willing. It has offered to charge customers a monthly fee, then give a major cut of the revenue to the record labels.
So far the industry has fiercely resisted any offers. Industry representatives probably think they can win the court fight. Even if they do, it may be a short-lived victory against technology that keeps gets speedier and trickier.
For now, the industry would rather fight. Instead, it should work out a deal. Each new medium is wary of the next. The movie industry feared the VCR just as the record industry feared cassette tape recorders and newspapers feared television.
Over time, each figured out ways to profit from the next innovation. The record industry should be working with innovators like Napster to figure out how to use this new technology to its advantage. Instead of arguing about changing times, the industry, the artists and the Web heads should take advantage of the changes. As we used to say back in the days when records really were records, the industry needs to find its groove and get into it.
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